ICC and Palestine: Peace vs. Justice or Politics vs. Law?

An official ceremony on 1 April marked the completion of Palestine’s accession to the Rome Statute of the International Criminal Court (ICC), bringing the number of State Parties to 123 and turning the attention of the Court to the Middle East region.

While the recourse to international criminal law is commonly intended as an instrument to close the impunity gap and to ensure accountability for international crimes, the potential instrumentalization of the ICC intervention by state powers is likely to endanger the Israeli–Palestinian peace process.

The entry into force of the Rome Statute in Palestine implies that the ICC may exercise its jurisdiction with respect to the crimes committed after the official accession, as stated under art. 11 (2) of the Statute. Nevertheless, it is worth recalling that, as a consequence of the ad hoc declaration lodged on 1 January 2015, Palestine has accepted an extension of the Court’s jurisdiction retroactively, as of 13 June 2014.

As a consequence of the declaration, on 16 January 2015 the Office of the Prosecutor (OTP) of the ICC announced the opening of a preliminary examination into the situation in Palestine, the first step towards a decision to conduct a full investigation. According to its “Policy Paper on Preliminary Examination”, the OTP has the duty to assess whether there is a “reasonable basis” to believe that investigative criteria set by the Rome Statute are met. These criteria include jurisdiction (temporal, material, and either territorial or personal jurisdiction), admissibility (complementarity and gravity) and the interests of justice.

It is likely, as argued by several commentators, that the Prosecutor will take months, if not years, to complete this difficult assessment and reach a decision on whether to proceed further. Aside from the statutory requirements that the Prosecutor has to tackle, the complexity of the situation is exacerbated by the political implications related to the case of Palestine, whose determination to join the ICC has triggered strong reactions from the international arena.

The Israeli Government has condemned the move of Palestine, and responded with economic countermeasures: the monthly transfer of about $130 million in customs duties levied on goods destined for Palestinian markets was suspended for three months, putting the Palestinian Authority under significant financial stress. Last Friday, the Israeli Government stated that “the tax revenues that accrued up until February 2015 will be transferred, offset by payments for services rendered to the Palestinian population, such as electricity, water and hospitalization”, without clarifying if the regular transfers will resume in the following months.

The US Government also expressed concern about the impact that ratification of the Rome Statute by Palestine could have on the negotiation process. The US State Department condemned the request for accession as an “escalatory step” that “badly damages the atmosphere with the very people with whom they ultimately need to make peace.” On the other hand, the intention of Prime Minister Benjamin Netanyahu, expressed during the recent election campaign (though later refuted), to completely rule out the establishment of a Palestinian state, as well as his ambition to accelerate construction of settlements in occupied East Jerusalem leave little hope for any diplomatic advancement towards peace.

The attitude of the Israeli government could provoke a shift in the US approach to the matter. It has been arguedthat the US could use international law as leverage to promote a two-state solution as an alternative to the involvement of the ICC, as a representative of the Obama administration has mooted. Based on the belief that an ICC investigation would hinder rather than facilitate the diplomatic dialogue, the US government is likely to support a UN Security Council Resolution which would allow the Council to exercise its power to defer the investigation.

This power is enshrined in art. 16 of the Rome Statute, stating that “[n]o investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”

Until now, none of the attempts made by the Security Council to push for a delay of the investigation have been successful, probably in light of the fact that the use of the deferral power would marginalize the role of accountability and discredit the deterrent effect of an ICC investigation. The decision to exercise the deferral would need the consensus of all the Permanent members of the Security Council. While China and Russia could be led in the decision process by different factors of political convenience, the UK and France would have to take into account their status as ICC State parties.

This dual role – as P5 members and ICC States Parties – may complicate matters for the European powers. As ICC members, Britain and France are committed to promoting the action of the Court as a means to put an end to impunity for the perpetrators of most serious crimes, and thus to contribute to the prevention of such crimes, as stated in the Preamble of the Rome Statute. The exercise of their veto power in the Security Council would send a clear negative message about the relevance of the ICC as an instrument capable of advancing peace through its delivery of justice. Adopting this course would corroborate the view held by Washington on the Middle East – that any ICC intervention represents an obstacle on the path to peace.

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